Archives – February, 2013
By Scottie Thomaston
The Obama administration has filed a brief in Hollingsworth v. Perry, the constitutional challenge to California’s Prop 8. Reports over the past few weeks have suggested that were the administration to get involved in the case, President Obama himself would sign off on the brief once it’s finished.
The brief itself is filed by the Solicitor General in the United States Department of Justice.
The Solicitor General writes that:
This case presents the question whether California’s denial of the right to marry to same-sex couples violates equal protection. The United States has an interest in the Court’s resolution of that question, particularly in light of its participation in United States v. Windsor, No. 12-307 (cert. granted Dec. 7, 2012), now pending before the Court. The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes.
And they write:
Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
While the brief suggests that “[t]he Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here,” it also argues a heightened level of judicial scrutiny should be applied. This would inevitably affect anti-LGBT laws in future cases, including marriage bans.
The filing says California offers its gay and lesbian citizens the same rights but withholds the label of “marriage” andc then points to the fact that it is one of eight states to do so:
Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples[.]
The label of marriage is important though, it:
confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.
And Prop 8 does nothing but strip dignity from same-sex couples:
Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law[.]
Attorney General Eric Holder has issued a statement, provided to EqualityOnTrial, upon the filing of the brief:
“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”
The filing has just been released and analysis from EqualityOnTrial will be forthcoming…
h/t Kathleen for the Scribd filing
By Scottie Thomaston
The American Sociological Association has filed an amicus curiae (“friend of the court”) brief at the Supreme Court in the Prop 8 and DOMA cases the Court will hear in March. The brief presents research on same-sex parenting. A press release from the group says:
The American Sociological Association (ASA) weighed in on the gay marriage cases before the U.S. Supreme Court today, filing an amicus brief outlining social science research that shows “children fare just as well” when raised by same-sex or heterosexual parents.
“The results of our review are clear,” said ASA President Cecilia Ridgeway. “There is no evidence that children with parents in stable same-sex or opposite-sex relationships differ in terms of well-being. Indeed, the greater stability offered by marriage for same-sex as well as opposite-sex parents may be an asset for child well-being.”
Founded in 1905, the ASA has more than 14,000 members and a long history of presenting the consensus research findings of sociologists to American courts for their use in evaluating evidence and legal issues. In March, the U.S. Supreme Court is scheduled to hear cases on the Defense of Marriage Act (DOMA), which denies federal recognition of same-sex marriages already legalized under the law of several states, and Proposition 8, which revoked the right of same-sex couples to marry in California.
“An issue at the heart of these cases is whether family composition, per se, affects the well-being of children and thus, provides a justification for limiting the right to marry,” said Ridgeway, the Lucie Stern Professor of Social Sciences in the Sociology Department at Stanford University. “This core question is an empirical one and is the subject of a broad range of social science research. As a scientific body, ASA has a duty to provide the court with a systematic and balanced review of the evidence to assess what the consensus of scholarly research has shown.”
As John Becker’s report (linked above) notes, the brief not only addresses House Republicans’ claims that children do better with two opposite-sex parents, but also addresses the widely discredited study by Mark Regnerus purporting to show the same.
By Scottie Thomaston
EqualityOnTrial has reported previously on the amicus brief that was signed by 75 Republicans and then later, over 100, supporting the freedom to marry for all Americans and opposing California’s Prop 8.
The brief has now been filed with the Supreme Court and you can read it here.
h/t Kathleen for this filing
By Scottie Thomaston
UPDATE 2 (4:02PM ET): The New York Times also confirms:
Breaking News:Obama Administration Urges Supreme Court to Overturn California Gay Marriage Bannyti.ms/ZEC9V4
— The New York Times (@nytimes) February 28, 2013
UPDATE 3:47PM ET: Reuters confirms that an “administration official” in the Obama administration has told them a brief will be filed in the case.
A breaking report by NBC News says the Obama administration is filing a brief in the Prop 8 case urging the Supreme Court to strike it down.
BREAKING: Justice Department will urge US Supreme Court to allow same-sex marriage to resume in California in Prop 8 case – @petewilliamsnbc
— NBC News (@NBCNews) February 28, 2013
Courage Campaign has urged the administration to get involved in the case and support the right of all Americans to marry the person they love.
There is no indication yet how far the administration will go in its argument: there are a variety of options from a narrow view to a view of full marriage equality in all states.
EqualityOnTrial will report any new updates.
UPDATE: Rick Jacobs, founder of Courage Campaign, has a statement:
“We applaud President Obama for standing up for millions of Californians who simply want to marry the person they love. The two Supreme Court cases this summer will be a watershed moment for equality and President Obama has put his Administration squarely on the right side of history. Last November, voters from Maine to Washington stood up for equality. Now it’s time for the Supreme Court to catch up with the American public. Discrimination and hatred have no place in a country founded on the principles of liberty, justice and equality.”
More than 15,000 Courage Campaign members urged President Obama to take the action he did today.
By Scottie Thomaston
As the Obama administration is considering filing a friend-of-the-court brief in the Prop 8 case in support of marriage equality, ABC News is reporting that Attorney General Eric Holder said in an interview that marriage equality is “really the latest civil-rights issue” and it’s about “whether or not American citizens are going to be treated with equal protection of the laws[.]”
The Attorney General says they are still deciding “what position we’re gonna take” suggesting that the question may be over which arguments to make rather than whether to make any arguments. The Justice Department would file the brief if one were to be filed. The Solicitor General is typically the lawyer who tells the Supreme Court what the administration’s legal position is on any issue, so the brief would be filed by Solicitor General Donald Verrilli.
A brief is due by the end of the day if they decide to file.
By Scottie Thomaston
Today is the deadline to file amicus curiae (“friend of the court”) briefs in support of the plaintiffs, same-sex couples, in Hollingsworth v. Perry, the Prop 8 case. There have already been multiple reports of forthcoming briefs.
First, House Democrats will file a brief urging the Court to strike down Section 3 of DOMA:
House Democrats are circulating a legal brief that will argue against the constitutionality of the Defense of Marriage Act before the Supreme Court, the Washington Blade has learned.
Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said his boss will lead other Democrats in the friend-of-the-court brief before the Supreme Court, which is due on Friday. The case pending before the court is known as Windsor v. United States.
“There will be a strong expression of support from the House Democratic Caucus in support of overturning DOMA and casting DOMA into the dustbin of history,” Hammill said.
Hammill declined to provide additional details about the filing, so it’s unknown what the argument of the brief will be. It will likely counter the arguments presented by the House Republican-led Bipartisan Legal Advisory Group that the committee speaks for the House as a whole.
Metro Weekly asks where Congressional Democrats are on the Prop 8 case, and notes our earlier reported story that Rep. Mark Takano (D-CA) has written a letter to President Obama asking him to file a brief in the case.
The US Conference of Mayors will file a brief urging the Court to strike down Section 3 of DOMA.
California’s Attorney General Kamala Harris filed a brief in the Prop 8 case suggesting it is unconstitutional even under the most lenient standard of judicial review.
Towleroad has a list of more briefs to be filed in the Prop 8 case, including international law scholars, corporations, bar associations and more.
And several equality organizations will file a “red state brief” with red states urging the Court to strike down both Prop 8 and DOMA.
EqualityOnTrial will be watching the new filings come in and reporting on them throughout the days and weeks ahead. We will also be looking out for a possible filing by the Obama administration in the Prop 8 case. Days ago, the White House was still not commenting on whether one will be filed.